Make hay

By Irina Raicu J.D. ’09

Following recent disclosures about U.S. government surveillance programs, much public debate has centered on the need to balance the benefits and harms of intelligence gathering. That analysis is hard to do in the absence of details, even if we assume that collection and analysis of data have helped protect us. As a society we still need to ask some broader questions about the rights affected by secretive programs—as well as their utility. Let’s start with these.

1. Initially, the administration said that our elected representatives were fully briefed about and approved the programs. If that’s true (which some members of Congress disputed), it raises another question: Is there a level of transparency that U.S. citizens need from each branch of the government even if those branches are transparent to one another? In a democracy, can the system of checks and balances function with informed representatives but without an informed public? Would such an environment undermine voters’ ability to choose?

2. Harms of pervasive surveillance are less intuitive than benefits. The latter, we are told, include better protection against potential terrorist attacks and more effective responses to ones that do occur. Security is often presented as a common good, while privacy is presented as either a lesser good or an individual (slightly selfish) concern. But privacy is a common good, too. It’s a necessary prerequisite not just for democratic governance but also for development of individual character, for freedom of thought, and innovation in all its forms. In a society in which the government collects the metadata (and possibly much of the content) of every person’s communications for future analysis, will people still speak, read, research, and act freely? Do we have examples of countries in which mass surveillance coexisted with democratic governance? Does mass surveillance inherently create an imbalance of power between the state and the individual?

3. Some critics have compared the recently revealed programs with the internal surveillance systems that existed in countries like East Germany (and still exist in some countries today). Others have bristled at such comparisons. Given the new technologies that we use every day, and the coming “Internet of Things,” the new surveillance capabilities might mean we have no precedents for the types and scope of monitoring that we may be facing. Do we need to stop looking toward the past and instead consider the potential for novel abuses in the future—and draw new limits that reflect our new reality?

4. Although some of our government’s actions since 9/11 have been condemned in other countries, in much of the world the United States is still seen as a champion of civil liberties and as a defender of Internet freedom. But the recent revelations have again altered perceptions of the United States abroad: We have seen evidence that some U.S. companies are losing business because of the surveillance. That effect may pass or be outweighed by purported gains in national security. But will people around the world be less likely to collaborate with us, particularly given assurances that much of the surveillance is directed at foreigners or those who communicate with foreigners? Might these surveillance programs change the perception of the United States to the point where they hamper, more than they help, our national security?

The explanation for the collection of vast amounts of information about all of us has come as a metaphor: In our networked, chatty culture, we are told, searching for the communications of terrorists or other criminals is like looking for a needle in a haystack, so in order to search, the government has to collect the haystack first. Details about that call you made an hour ago? They’re stalks in the haystack. The emails and texts you answered all morning? Straws. The photos you uploaded to Instagram? Other records, such as geolocation information or bank transactions? We’re not sure whether those are part of the haystack. Now that we know that the haystack exists, are we content to keep building it? Or is there a final straw?